Graeme Smith v Strahan Dive Pty Ltd

[2014] FWC 2816

[2014] FWC 2816

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Graeme Smith
v
Strahan Dive Pty Ltd
(U2014/5535)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 29 APRIL 2014

Application for relief from unfair dismissal.

[1] On 14 March 2014, Mr Graeme Smith made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the FW Act).

[2] Mr Smith’s employment with Strahan Dive Pty Ltd (Strahan Dive) ended on 3 February 2014. The unfair dismissal application was therefore not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission (the Commission) can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

Preliminary matters

[4] Strahan Dive applied for permission to have a legal practitioner represent them however no submissions were made which addressed section 596 of the FW Act and therefore permission to appear was refused.

[5] Neither party complied with the directions issued by the Commission. Mr Smith advised that he wished to rely upon his application,

Are there exceptional circumstances?

[6] The Commission may allow a further period for the application to be made by a person under subsection (1) if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay;

[7] Mr Smith stated that he was the subject of an apprehended violence order (AVO) which prevented him making contact with Mr Tim Richards, a director of Strahan Dive. He said that he was told by a friend a few days before he signed the application, on 5 March 2014, that he could make an application without contacting Mr Richards. Mr Smith then downloaded the form from the Commission website. The application was then not posted until 11 March 2014. Mr Smith did not explain why he completed the form on 5 March 2014 but did not post it until 11 March 2014.

[8] Mr Smith has not provided a satisfactory explanation for the delay in making the application. The AVO in no way prevented him from making an application. Further, even if I accepted that he was concerned that it may, he has not satisfactorily explained why he took a further six days to post his signed application.

[9] The lack of a satisfactory explanation weighs against the granting of an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[10] Mr Smith was aware of this dismissal when it occurred. This weighs against the granting of an extension of time.

(c) any action taken by the person to dispute the dismissal;

[11] Mr Smith says he contested his dismissal at the time, Mr Richards accepts that he did but said he did it in such an aggressive manner that Mr Richards had to take out an AVO against Mr Smith. Mr Smith took no other action to dispute his dismissal. This criterion is neutral.

(d) prejudice to the employer (including prejudice caused by the delay;

[12] Mr Richards submitted that granting Mr Smith’s application for an extension of time would cause additional stress to him as well as cause him to incur additional costs. There was no submission that Strahan Dive would be prejudiced in the preparation of its case. This criterion is neutral.

(e) the merits of the application;

[13] Mr Smith said he was terminated because he failed a drug test. Mr Richards said that he was terminated for breach of safety procedures.

[14] As there has not been a full hearing on the facts in dispute, no findings about the merits of the case can be made. This criterion is neutral.

(f) fairness as between the person and other persons in a similar position.

[15] No submissions were made on this criterion.

Conclusion

[16] Nothing put to the Commission by Mr Smith would support a finding that there are exceptional circumstances warranting the granting of an extension of time. The AVO did not prevent him making the application. Even it did, he has not been able to explain the additional delay once he was aware that he could make the application. The other criteria do not weigh in favour of granting the application. Therefore his application for an extension of time is dismissed and his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

G Smith on his own behalf.

T Richards on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

29 April.

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